Larney v Johannson

[2013] NSWCA 409

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Larney v Johannson [2013] NSWCA 409

Hearing dates:

12 November 2013

Decision date:

09 December 2013

Before:

Meagher JA at [1];
Barrett JA at [14];
Emmett JA at [21]

Decision:

1. Leave to appeal be granted.

2. The appeal be dismissed with costs.

Catchwords:

APPEAL - civil - Dividing Fences Act 1991 - whether power under Act to order removal of fence - whether "fencing work" includes removal of fence - whether proper notice under s 11 was served by appellant owner requiring adjoining respondent owner to contribute to removal of fence erected by respondent owner - where respondent owner who erected fence initially served notices on appellant requiring contribution but then erected fence without seeking contribution - where respondent owner's fence determined to be a sufficient dividing fence - where appellant owner purported to apply under Act to remove fence

Legislation Cited:

Crown Lands Act 1989
Dividing Fences Act 1991
Fences Dividing Fences Act 1988
Local Government Act 1993
Supreme Court Act 1970, s 101(2)(r)

Cases Cited:

Alwiah v Watts [2004] NSWSC 948
Larney v Johannson [2012] NSWSC 1297

Texts Cited:

Digest of Justinian 10.1
Justinian's Institutes 4.17.6
New South Wales Law Reform Commission, Dividing Fences Report 59, December 1988 - Community Law Reform Program: Dividing Fences

Category:

Principal judgment

Parties:

Ismail Larney (Appellant)
Angela Johannson (Respondent)

Representation:

Counsel:

RS Angyal SC with D Accoto (Appellant)
P Blackburn-Hart SC (Respondent)
Solicitors:

Hall Partners (Appellants)
Fox O'Brien (Respondent)

File Number(s):

CA 12/283308

 Decision under appeal 

Citation:

Larney v Johannson [2012] NSWSC 1297

Date of Decision:

2012-08-14 00:00:00

Before:

Adams J

File Number(s):

2012/72116

Judgment

1. MEAGHER JA: The Dividing Fences Act 1991 provides for the apportionment between adjoining owners of the cost of dividing fences. By s 6 it creates a liability of an adjoining owner to contribute to the carrying out of "fencing work" in circumstances where there is no "sufficient dividing fence". Part 3 sets out the procedure for determining the existence and extent of that liability. It provides by s 11(1) that an adjoining owner may require the other owner to contribute to the carrying out of fencing work by serving a notice to that effect on the other owner. Section 11(5) describes circumstances in which an adjoining owner is not liable to contribute for particular "fencing work". They include, subject to exceptions not presently relevant, that work is carried out before a notice under s 11(1) has been given.

1. The Act also provides a mechanism for the resolution of disputes as to the nature and extent of "fencing work" which is the subject of a notice requiring contribution, and as to the respective liabilities of the adjoining owners to contribute to the cost of it. In the event that owners cannot agree as to those matters, on the application of either of them under s 12 a local land board constituted under the Crown Lands Act 1989 may make orders under s 14 directed to determining…